United States v. Guajardo-Melendez

August 9, 1968

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.SALVATORE GUAJARDO-MELENDEZ, ALSO KNOWN AS GUADALUPE SANTOYA, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. MARIO MOISES ALMAREZ-MEDINA, ALSO KNOWN AS MARIO MOISES ALMAREZ, ALSO KNOWN AS RAMON TJERINA, ALSO KNOWN AS GUILLERMO HERNANDEZ, DEFENDANT-APPELLANT

Schnackenberg, Swygert and Fairchild, Circuit Judges.

Author: Swygert

SWYGERT, Circuit Judge.

No. 16335

Salvatore Guajardo-Melendez, also known as Guadalupe Santoya, appeals from a judgment of conviction entered after a jury found him guilty of selling heroin in violation of 21 U.S.C. § 174. The indictment, containing one count, additionally named Jose Becera-Soto and Mario Moises Almarez-Medina, also known as Guillermo Hernandez. After the jury had been selected but before the introduction of any evidence, Soto was allowed to withdraw his plea of not guilty and to plead guilty instead. Thereafter, both Santoya and Hernandez were tried together. Before this court, Santoya urges two principal contentions for reversal. First, he argues that the district court erred in admitting into evidence a hearsay statement of codefendant Hernandez uttered out of the presence of Santoya. Second, he argues that reversible error occurred due to the actions of the assistant United States Attorney during the closing argument.

Four Federal Bureau of Narcotics' agents testified on behalf of the Government. According to the testimony of Agent Jordan, he met Soto at 16th and Blue Island in Chicago on the morning of November 1, 1966, from where they proceeded in the agent's car to 1808 Allport. Soto entered the building at that address and returned about five minutes later. Shortly thereafter, Santoya came out of the building, approached the agent's car, and conversed with Soto in Spanish. Agent Jordan testified that Santoya said, "'Hernandez told me to go pick up the stuff'." Santoya then walked away from the car toward 18th Street and was followed for about a block by another agent. A few minutes after Santoya left, Hernandez came out of the Allport building and entered Agent Jordan's car. According to the Government's testimony, Agent Jordan, Soto, and Hernandez proceeded to 16th and Halsted Streets where they parked the car. Santoya, who was waiting at the intersection, approached the car, opened his coat, showed the occupants a package he was carrying, and said, "'Here's the stuff.'"*fn1 Thereafter, Santoya went into a tavern on the corner and Agent Jordan proceeded to drive Soto and Hernandez to the Greyhound Bus Terminal in downtown Chicago. Other agents in the area followed Agent Jordan's car. No agents remained in the tavern to keep Santoya under surveillance.

When Agent Jordan, Soto, and Hernandez reached the terminal, they were joined in the car by Agent Azzam. Agent Azzam testified that while he was in the car, he engaged Hernandez in conversation. His testimony concerning this conversation follows:

By The Witness: [Agent Azzam]

A. I told them I wouldn't give up the money until I had the stuff or had seen it.

By Mr. McDonnell: [Assistant United States Attorney]

Q. What did they say to you?

The Court: What did who say?

Identify the speaker.

By Mr. McDonnell:

Q. Did Hernandez ...

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